TMI Blog2013 (7) TMI 798X X X X Extracts X X X X X X X X Extracts X X X X ..... s called for - the court would not encourage litigation at the stage of show cause notice - the noticee had sufficient opportunity to meet with all the allegations and produce such material on record as may be required –court relied upon Special Director and anr. vs. Mohd. Ghulam Ghouse and anr. (2004 (1) TMI 378 - SUPREME COURT OF INDIA ). The statute provides for detailed mechanism for adjudication of disputes between the department and the importer – court would not like to short-circuit such proceedings and plunge straightaway into examining such questions in a writ jurisdiction at the first instance – Union of India vs. Guwahati Carbon Ltd. (2012 (11) TMI 885 - SUPREME COURT OF INDIA) - the assessee had a remedy in the form of a ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 2,96,37,650/- on the basis of the classification under CTH 2701 1200; (iii) The 456782.63 Mts. Imported Coal valued at Rs. 261,64,78,627/- as detailed in Annexure -A1 A2 should not be confiscated/held liable to confiscation under the provisions of Section 111(d) and 111(m) of the Customs Act, 1962; (iv) The Differential Customs Duty amounting to Rs. 25,15,54,602/- (Rupees Twenty Five Crore Fifteen Lakhs Fifty Four Thousand Six Hundred Two only) on the 415782.63 Mts, of impugned Coal as detailed in Annexure A2 [the finally assessed bills of entry] to this notice, should not be demanded and recovered from them under Section 28(1) of the Customs Act, 1962; (v) Interest should not be recovered from them on the said differential Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tification No. 12/2012 exempting imports of steam coal from payment of basic customs duty and limiting the additional customs duty at 1%. He contended that only in order to deprive the petitioner of such benefits flowing from the said exemption notification, the department has issued the impugned show cause notice in which the stand of the department is that the coal imported by the petitioner is bituminous coal and not steam coal. In para 16 of the notice, the department has asserted that the petitioner had knowingly made a mis-declaration declaring the import as steam coal instead of bituminous coal. He submitted that there was no mis-declaration on the part of the petitioner. Full details were provided to the department. 4. We are, how ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uing the very notice initially, before the aggrieved could approach the Court. Further, when the Court passes an interim order it should be careful to see that the statutory functionaries specially and specifically constituted for the purpose are not initially decide the matter and ensure that ultimate relief which may or may not be finally granted in the writ petition is accorded to the writ petitioner even at the threshold by the interim protection, granted. 5. In case of Commissioner of Customs and Central Excise and ors. vs. M/s. Charminar Nonwovens Ltd. reported in 2004 AIR SCW 3122 the Department had challenged the Excise judgement of the High Court. There was a dispute between the manufacturer and the department with respect to cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch matters at the stage of issue of the show cause notice. We, therefore, set aside the order made by the High Court and remit the matter to the concerned authority for adjudication.... ... ... 6. In the present case, we are all the more reluctant to entertain this litigation at the stage of show cause notice since in our opinion, several questions of facts as well as law would arise. What exactly the nature of classification between steam coal and bituminous coal, what are the properties of the coal imported by the petitioner, whether such parameters would classify the coal as steam coal and not bituminous coal etc. are questions which cannot be judged by us even without first adjudication by the departmental authorities. Further, wheth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt questioning, the correctness or otherwise of the orders passed by the Tribunal. The Excise Law is a complete code in order to seek redress in excise matters and hence may not be appropriate for the writ court to entertain a petition under Article 226 of the Constitution. Therefore, the learned Single Judge was justified in observing that since the assessee has a remedy in the form of a right of appeal under the statute, that remedy must be exhausted first, the order passed by the learned Single Judge, in our opinion, ought not to have been interfered with by the Division Bench of the High Court in the appeal filed by the respondent/assessee. 8. In view of the above discussion, when several questions of facts are involved, and in parti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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